Momennia v. INS

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 22, 1999
• Docket: 99-6210
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 5 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

MOHAMMAD RANKOUHI MOMENNIA,

Petitioner-Appellant, No. 99-6210 v. (D.C. No. CIV-98-1668-A) (W.D. Okla.) IMMIGRATION & NATURALIZATION SERVICE,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Petitioner-appellant Mohammad Rankouhi Momennia appeals from the

district court’s orders denying his 28 U.S.C. § 2241 petition for writ of habeas

corpus, and his motion to stay deportation. We lack jurisdiction to consider his

challenges, and therefore dismiss his appeal.

Appellant is a native and citizen of Iran. He entered the United States on

July 16, 1983, as an immigrant. On March 11, 1993, appellant was convicted in

Oklahoma state court of second degree robbery, assault and battery, and pointing

a firearm. Appellant completed his Oklahoma sentence in September 1995.

The Immigration and Naturalization Service (INS) instituted removal

proceedings against appellant on June 7, 1995. The basis for removal was

appellant’s conviction of the Oklahoma firearms offense. See Okla Stat. tit. 21,

§ 1289.16; I.N.A. § 237(a)(2)(C), codified at 8 U.S.C. § 1227(a)(2)(C). 1

The INS entered a final order of removal against appellant on September 3,

1997. The order notified him that an appeal would be due before October 3,

1997. Appellant did not file an appeal to the Board of Immigration Appeals

(BIA). Instead, on October 27, 1997, he filed a motion with the immigration

judge to reopen the removal proceedings and to stay his removal. The

1 The Order to Show Cause and Notice of Hearing also charged appellant with being deportable because of his having been convicted of an aggravated felony and of two crimes involving moral turpitude. A notation in the file indicates that these charges were later withdrawn as a basis for removal.

-2- immigration judge denied his motion because it did not contain the affidavit or

other evidentiary material required by 8 C.F.R. § 3.23(b)(3). There is no

indication that appellant appealed the denial of his motion to reopen the removal

proceedings to the BIA.

Appellant filed this habeas proceeding in December 1998. In connection

with the proceeding, he requested a stay of deportation. The district court denied

the writ, along with appellant’s request for stay. On appeal, he argues that (1) he

was entitled to a stay of deportation; (2) his attorney was ineffective for failing to

argue that he would be killed if deported to Iran, because of assistance he

provided to the United States government; (3) his attorney was ineffective in

failing to file an administrative appeal from the order of removal, and in filing

a motion to reopen the proceedings without attaching the required affidavit;

and (4) his Oklahoma conviction for pointing a firearm does not fall within the

category of firearms offenses set out at 8 U.S.C. § 1227(a)(2)(C).

Appellant failed to file a timely appeal with the BIA from the immigration

judge’s decision against him. His failure to raise his issues on appeal to the BIA

constitutes a failure to exhaust administrative remedies, which deprives both this

court and the district court of jurisdiction to consider them. See Akinwunmi v.

INS , 194 F.3d 1340, 1341 (10th Cir. 1991); Rivera-Zurita v. INS , 946 F.2d 118,

120 n.2 (10th Cir. 1991).

-3- Appellant asserts, however, that his failure to timely file his appeal with the

BIA was itself the result of his counsel’s ineffective assistance. The proper

administrative remedy for such alleged failings is to file a motion to reopen the

administrative proceedings. See Akinwunmi , 194 F.3d at 1341.

Appellant did file a motion to reopen with the immigration judge.

Unfortunately, appellant did not give the BIA an opportunity to address his

numerous claims of incompetent representation by his attorney by appealing the

immigration judge’s denial of his motion to reopen proceedings to the BIA.

Appellant’s failure to take an appeal from the order denying his motion to reopen

is a failure to exhaust administrative remedies, which deprives us of jurisdiction

to review his claims.

We also lack jurisdiction to review the order denying him a stay of

deportation, because such a request attacks the Attorney General’s discretionary

decision to execute the final order of removal. See Fedorca v. Perryman ,

197 F.3d 236, 240 (7th Cir. 1999). Review of the discretionary decision is barred

by 8 U.S.C. § 1252(g), as amended by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996. See Ho v. Greene , 204 F.3d 1045, 1051

(10th Cir. 2000).

-4- The district court’s orders denying appellant’s § 2241 petition and denying

the requested stay of removal are VACATED, and this case is REMANDED with

instructions to dismiss appellant’s § 2241 petition for lack of jurisdiction.

Entered for the Court

Mary Beck Briscoe Circuit Judge

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